Steven Ochieng Ochiro Odhiambo & another v Republic [2020] KECA 310 (KLR)
The bottom line
#Kenya's Court of Appeal freed two men sentenced to death for robbery, ruling that shaky night-time identification and unreliable witness evidence made their convictions unsafe.
What this practically means
#Executive summary
#Key legal issues
#Safety of identification evidence committed at night in darkness
The identification was unsafe; no inquiry was made into the intensity, source and distance of the alleged lighting, and witnesses failed to describe the attackers to the police at the earliest opportunity.
The offences were committed at night; witnesses variously described the conditions as very dark, relying on car lights, street lights, moonlight or small torches, yet there was no inquiry into the intensity or position of that light relative to the suspects. Witnesses could not identify the robbers, could not describe how they were dressed, could not estimate the duration of observation, and did not describe the attackers to the police when first reporting. Applying the caution in Nzoro and Maitanyi, such identification could not found a safe conviction.
Doctrine of recent possession and hearsay evidence
Since the Samsung phone was actually found in the possession of Sidney Lenny Odhiambo and the evidence linking it to the 1st appellant was his uncalled, out-of-court statement, the doctrine of recent possession was inapplicable.
The prosecution's chain rested on the statement of Sidney Lenny Odhiambo that he received the phones from the 1st appellant. Sidney was never called and no reason was given for his absence, rendering the information inadmissible hearsay. Discounted, the evidence showed only possession by Sidney, undermining recent possession, which could otherwise have assured the safety of identification. The prosecution also failed to call the Safaricom experts who allegedly tracked the 1st appellant despite his dispute of the arrest.
Credibility of PW4 and the 2nd appellant's alleged possession of the HTC phone
PW4's evidence was incredible and inconsistent with PW8's, and the two courts below, had they considered these issues, could not have concluded that PW4 was a witness of credit.
PW4 offered for sale a phone he claimed had hours earlier been left as security for a bill, knew the appellants as customers for four years without knowing their names, and gave testimony contradicted by PW10 and PW15 on CCTV cameras and billing. His account was inconsistent with PW8's on when and how the phone changed hands. His evidence also conflicted with PW11 and PW12 on who led the police to the 2nd appellant, a significant variation unexplained by the prosecution.
Conviction on a charge unsupported by the evidence adduced (count 2)
It was anomalous that the appellants were convicted of robbing Janeffer in count 2 when she never testified, and the evidence adduced, without amending the charge, was that PW5 was robbed of the same vehicle.
Janeffer, the alleged victim in count 2, was never called as a witness and no reason was given for her failure to testify; the report of the robbery was allegedly made by her on PW5's behalf. Yet the charge sheet alleged she was robbed of the Toyota Premio while the unamended evidence was that PW5 owned and was robbed of the same vehicle. A conviction on that basis could not stand.
Discrepancies and contradictions in prosecution evidence
Although not every inconsistency undermines a prosecution case, the contradictions here cast doubt on the prosecution case as a whole.
The Court acknowledged that discrepancies are inevitable in cases with many witnesses and may be overlooked where they do not affect an otherwise proved case. However, here there were significant contradictions: PW11 and PW12 said the 1st appellant led them to the 2nd appellant, while PW4 said he did; and PW6 placed his father in the car when carjacked, contradicting all other witnesses and PW9 himself. Such lapses on basic facts destroyed confidence in the witnesses' ability to identify the appellants.
Legal principles established
#- A second appeal is restricted to matters of law and the Court will not interfere with concurrent findings of fact unless no reasonable tribunal would have reached them.
- In cases of identification under difficult circumstances, the court must carefully analyse the evidence to exclude the possibility of mistaken identity, including inquiry into the nature and intensity of the light.
- Evidence of an absent witness reported by another is inadmissible hearsay and cannot found the doctrine of recent possession.
Court orders
#- 1.Appeal allowed
- 2.Convictions on all 6 counts of robbery with violence quashed
- 3.Sentences of death set aside
- 4.Appellants set at liberty forthwith unless otherwise lawfully held
- On appeal from
- High Court of Kenya at Machakos
- H.C.CR.A. No. 44 of 2017
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Court's appellate jurisdiction in criminal matters, restricted to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Steven Ochieng Ochiro Odhiambo & another v Republic [2020] KECA 310 (KLR)", Case Analysis (2020). Criminal Appeal No. 142 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/310/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.